[EL] ELB News and Commentary 7/20/11
Justin Levitt
levittj at lls.edu
Wed Jul 20 00:12:24 PDT 2011
Lots today.
"FEC Fines Former Rep. Grayson, Campaign Over Invitation Asking for
Corporate Money" <http://electionlawblog.org/?p=20664>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20664> by Justin
Levitt <http://electionlawblog.org/?author=4>
BNA (subscription required) has the details
<http://news.bna.com/mpdm/display/link_res.adp?lt=email&fname=A0C8M7T6G8&lf=eml&emc=mpdm:mpdm:108>.
Spoiler alert: Rep. Grayson's name was on a fundraising invite for a
state candidate, asking for contributions from an "individual,
corporation, PAC, or trust." Grayson contends that a staffer approved
his participation without his consent. No sign of a /Danielczyk/
<http://www.acslaw.org/acsblog/danielczyk-overreaching-or-prophecy> defense.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
1st of 9 Wisconsin recalls to the incumbent Dem
<http://electionlawblog.org/?p=20661>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20661> by Justin
Levitt <http://electionlawblog.org/?author=4>
In the first of nine recall elections in Wisconsin this summer, looks
like incumbent Democrat Dave Hansen (one of 14 who left the state to
deprive the majority of a quorum) is headed to victory
<http://www.chicagotribune.com/news/politics/sns-rt-us-wisconsin-recallstre76i6su-20110719,0,446102.story>.
Joshua Spivak's recall blog <http://recallelections.blogspot.com/> is
following all the action action action.
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Posted in recall elections <http://electionlawblog.org/?cat=11> |
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"Budget cuts may end mail-in ballots, registration"
<http://electionlawblog.org/?p=20658>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20658> by Justin
Levitt <http://electionlawblog.org/?author=4>
More from California. I don't know about "ending mail-in ballots,
registration
<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/18/MN1R1KC0F5.DTL>,"
but it looks like the budget crunch will push some hefty costs to the
counties.
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Posted in voter registration <http://electionlawblog.org/?cat=37> |
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Redistricting Quote of the Day <http://electionlawblog.org/?p=20656>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20656> by Justin
Levitt <http://electionlawblog.org/?author=4>
"This is a very political process where there are winners and losers,"
said Bob Stern of the Center for Governmental Studies in Los Angeles.
"And losers tend to sue."
-- Stern, on the California citizens' commission's efforts to prepare
for litigation
<http://www.bellinghamherald.com/2011/07/19/2108211/california-citizens-redistricting.html>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
The problem with No. 2 pencil <http://electionlawblog.org/?p=20646>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20646> by Justin
Levitt <http://electionlawblog.org/?author=4>
Is that it can be erased
<http://www.tulsaworld.com/news/article.aspx?subjectid=520&articleid=20110719_520_0_hrimgs983799>.
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Posted in voting <http://electionlawblog.org/?cat=31> | Comments Off
"A President's Opportunity: Making Military Voters a Priority"
<http://electionlawblog.org/?p=20643>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20643> by Justin
Levitt <http://electionlawblog.org/?author=4>
That's the title of the new Heritage Foundation report
<http://www.heritage.org/Research/Reports/2011/07/A-Presidents-Opportunity-Making-Military-Voters-a-Priority>
on implementation of the MOVE Act.
It was released today in connection with a Military Voting Rights
conference
<http://www.heritage.org/Events/2011/07/Military-Voting-Rights> at
Heritage, with a keynote address <http://www.texasinsider.org/?p=49645>
by Sen. Cornyn, who also sent off a letter
<http://www.scribd.com/doc/60372120/SJC-Letter-to-AG-Re-Mil-Voting-Rights-in-2012-Election-JUL-2011-Signed-Scanned>
today to the Justice Department on MOVE implementation.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
voting <http://electionlawblog.org/?cat=31> | Comments Off
A new North Carolina redistricting proposal
<http://electionlawblog.org/?p=20635>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20635> by Justin
Levitt <http://electionlawblog.org/?author=4>
With new impact. Here
<http://www.washingtonpost.com/blogs/the-fix/post/gops-second-crack-at-nc-redistricting-map-even-more-perilous-for-democrats/2011/07/19/gIQAAWnGOI_blog.html>
and here <https://twitter.com/#%21/Redistrict/status/93389827675926528>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
Support for an en banc rehearing in /Renzi/
<http://electionlawblog.org/?p=20627>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20627> by Justin
Levitt <http://electionlawblog.org/?author=4>
Before we get to a cert. grant <http://electionlawblog.org/?p=19623> in
the case against former Rep. Richard Renzi
<http://electionlawblog.org/?p=19547>, there's the matter of potential
en banc proceedings. The bipartisan legal advisory group of the House of
Representatives (which reflects the House's official institutional
position in litigation) has filed
<http://legaltimes.typepad.com/blt/2011/07/house-lawyers-denounce-decision-on-legislative-privilege.html>
this amicus brief
<http://electionlawblog.org/wp-content/uploads/Renzi-amicus.pdf> in
support of rehearing.
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Posted in Speech or Debate Clause <http://electionlawblog.org/?cat=36> |
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Redistricting at breakneck speed <http://electionlawblog.org/?p=20624>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20624> by Justin
Levitt <http://electionlawblog.org/?author=4>
Quick, before the recalls! Wisconsin state Senate passed
<http://legis.wisconsin.gov/insession/senate/toc.htm> both state and
federal redistricting plans today, and the Assembly plans to take up
redistricting tomorrow. More here
<http://redistricting.lls.edu/states-WI.php>.
*Update*: Keesha Gaskins points out an intriguing omission
<http://www.jsonline.com/news/opinion/125847013.html> in the new
redistricting bills.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
Ninth Circuit overturns conviction for threat v. Obama
<http://electionlawblog.org/?p=20619>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20619> by Justin
Levitt <http://electionlawblog.org/?author=4>
United States v. Bagdasarian
<http://www.ca9.uscourts.gov/datastore/opinions/2011/07/19/09-50529.pdf>
was decided today, reversing the conviction of a Southern California man
for disturbing and violent comments
<http://www.wired.com/threatlevel/2011/07/obama-assassination-speech/>
about Barack Obama posted to a message board in the weeks before the
2008 elections.
The Ninth Circuit panel's opinion was written by Judge Reinhardt and
joined by Chief Judge Kozinski (who not infrequently find themselves
strongly disagreeing about other issues), with a partial concurrence and
partial dissent by Judge Wardlaw. The opinion describes the defendant
as "especially unpleasant," his comments as "particularly repugnant,"
and his conduct as "inexcusable" --- all sentiments with which I
heartily agree, in addition to a whole lot of other adjectives,
printable and unprintable. But in an opinion heavily dependent (and
appropriately so) on the crimes charged and the contextual nuances
surrounding Bagdasarian's posts, the panel finds that the posted
comments did not amount to true threats, under the federal statute in
question (as constrained by the First Amendment).
*Update*: Eugene Volokh explains further
<http://volokh.com/2011/07/19/ninth-circuit-panel-reverses-conviction-for-allegedly-threatening-to-kill-then-candidate-obama/>
... and predicts a good chance for en banc rehearing or cert grant.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
Alleged Theft of JSTOR Archives <http://electionlawblog.org/?p=20616>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20616> by Rick
Hasen <http://electionlawblog.org/?author=3>
Whoa
<http://idealab.talkingpointsmemo.com/2011/07/reddit-co-creator-turned-progressive-activist-aaron-swartz-charged-in-mit-theft.php?ref=fpb>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Is the House Now in Play for the 2012 Elections?"
<http://electionlawblog.org/?p=20613>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20613> by Justin
Levitt <http://electionlawblog.org/?author=4>
Stuart Rothenberg
<http://www.rollcall.com/issues/57_9/is_house_now_in_play_2012_elections-207424-1.html>
does the math, based on redistricting projections and candidate recruitment.
More math at the Cook Political Report
<http://www.cookpolitical.com/node/10516> and at the Washington Post
<http://www.washingtonpost.com/wp-srv/special/politics/redistricting-scorecard/>.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
Parnell on Colbert on Parnell <http://electionlawblog.org/?p=20610>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20610> by Justin
Levitt <http://electionlawblog.org/?author=4>
Sean Parnell (Center for Competitive Politics) and Sheila Krumholz
(Center for Responsive Politics) were on the Colbert Report
<http://www.colbertnation.com/the-colbert-report-videos/392261/july-18-2011/colbert-super-pac---campaign-finance>
last night, with continuing entertaining coverage of some very real
issues. Sean's got interesting further thoughts on the exchange, here
<http://www.campaignfreedom.org/blog/detail/thoughts-on-colbert>.
*Update*: More on the Colbert Bump, here
<http://www.chicagotribune.com/entertainment/ct-ent-0720-colbert-as-political-forc20110720,0,3389417.story>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24> | Comments Off
TX governor signs congressional redistricting plan
<http://electionlawblog.org/?p=20606>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20606> by Justin
Levitt <http://electionlawblog.org/?author=4>
Which means it will now join AL and LA in seeking preclearance. Eight
other states, mostly huddled in the heartland (AR, IA, IL, IN, MO, NE,
OK, OR), already have final congressional plans. And three (CO, MN, NV)
have essentially given up, with the process turned over to the courts.
On the state legislative side, nine states (IA, IL, IN, LA, NE, NJ, OK,
OR, VA) have final state legislative plans, though two (NJ and OK) are
currently in litigation. Three more (AK, SC, and TX) await preclearance
--- though both Alaska's plan and Texas's plan are also already in
litigation. And MN and NV courts look like they'll be primarily
responsible for drawing the state legislative plans as well.
You can keep track of the scorecard at All About Redistricting
<http://redistricting.lls.edu>.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"Three of This Year's Top Four Presidential Fundraisers So Far Are
Relying on Small Donors" <http://electionlawblog.org/?p=20604>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20604> by Justin
Levitt <http://electionlawblog.org/?author=4>
The Campaign Finance Institute
<http://www.cfinst.org/Press/PReleases/11-07-19/Three_of_This_Years_Top_Four_Presidential_Fundraisers_So_Far_Are_Relying_on_Small_Donors.aspx>
sums up their assessment of the most recent FEC filings.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Turning to D.D.C. for preclearance
<http://electionlawblog.org/?p=20599>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20599> by Justin
Levitt <http://electionlawblog.org/?author=4>
Stateline's report
<http://www.stateline.org/live/details/story?contentId=588329> on an
intriguing apparent trend, in which states file for preclearance
simultaneously with the DOJ and with the federal district court in D.C.
Seems to me like this would just add to the burden on DOJ, and thereby
slow the preclearance process down rather than speed it up, but
Louisiana and Virginia have thus far found it a useful means to make a
political point.
I've got a brief summary on the preclearance process
<http://redistricting.lls.edu/who-preclear.php>, with links to other
useful resources (including LDF's extremely useful guide to section 5
<http://naacpldf.org/files/publications/Tearing_Down_Obstacles_Manual_0.pdf>,
and the Lawyers' Committee's extraordinary database of preclearance
objection letters <http://www.lawyerscommittee.org/projects/section_5/>)
here <http://redistricting.lls.edu/who-preclear.php>, at All About
Redistricting <http://redistricting.lls.edu>. And redistricting that
finds its way to court --- including preclearance suits filed with
D.D.C. --- is compiled here <http://redistricting.lls.edu/cases.php>.
*Update*: Looks like Texas joined LA and VA in double-filing. Today, it
submitted
<http://www.texastribune.org/texas-redistricting/redistricting/texas-seeks-clearance-for-political-maps/>
both state and federal maps to DOJ and to the DC district court. The
court filing is here
<https://www.oag.state.tx.us/newspubs/releases/2011/071911compliant.pdf>.
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Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
"Fair Elections Ohio Turns in First 1000 Signatures for HB194
Referendum" <http://electionlawblog.org/?p=20595>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20595> by Justin
Levitt <http://electionlawblog.org/?author=4>
The next phase
<http://www.progressohio.org/blog/2011/07/fair-elections-ohio-turns-in-first-1000-signatures-for-hb194-referendum.html>
of the debate over Ohio's new omnibus election law. Here
<http://www.couragepac.com/wp-content/uploads/2011/07/FAIR-ELECTIONS-OHIO-Summary-Update.pdf>
is the opponents' list of grievances.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
petition signature gathering <http://electionlawblog.org/?cat=39> |
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Breaking News: Rehearing En Banc Denied in Ninth Circuit San Diego
/Thalheimer/ Case <http://electionlawblog.org/?p=20589>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20589> by Rick
Hasen <http://electionlawblog.org/?author=3>
Big news from the Ninth Circuit. The full court has denied rehearing en
banc in this campaign finance case. According to the order
<http://electionlawblog.org/wp-content/uploads/thalheimer-order.pdf>, no
active judge on the court requested a vote in the case. Among other
things, the panel opinion
<http://www.ca9.uscourts.gov/datastore/opinions/2011/06/09/1055322.pdf>
held that a ban on non-human (e.g, corporate or union) direct
contributions to candidates does not violate the First Amendment. The
court also held that a temporal limitation on campaign contributions (no
contributions more than a year before an election) is likely
constitutional. [Disclosure: I am one of the attorneys for the City of
San Diego.]
The district court in the /Danielczyk/ case
<http://www.acslaw.org/acsblog/danielczyk-overreaching-or-prophecy>held
that the federal corporate contribution ban was unconstitutional, a case
now on appeal <http://electionlawblog.org/?p=19256>to the Fourth
Circuit. The Eighth Circuit in the /Swanson/
<http://www.ca8.uscourts.gov/opndir/11/05/103126P.pdf> case held that a
similar Minnesota ban was constitutional, but this case in now up for en
banc consideration <http://electionlawblog.org/?p=20294>.
We will wait to see if Jim Bopp files a petition for cert. in this case.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Let's Put Citizens United to the Test: Pakistani Agent $ in U.S.
Elections <http://electionlawblog.org/?p=20587>
Posted on July 19, 2011 <http://electionlawblog.org/?p=20587> by Rick
Hasen <http://electionlawblog.org/?author=3>
NBC's Pete Williams reports
<http://firstread.msnbc.msn.com/_news/2011/07/19/7112067-fbi-arrests-pakistani-agent-for-making-political-contributions-in-us>
"Law enforcement sources say the FBI has arrested an agent of Pakistan's
official state intelligence service, accusing him of making thousands of
dollars in political contributions in the United States without
disclosing his connections to the Pakistani government."
The conduct, if proven, is clearly illegal
<http://us-code.vlex.com/vid/contributions-donations-foreign-nationals-19137877>
under federal law. But is that federal law unconstitutional? /Citizens
United /has told us that in the First Amendment independent spending
context, the identity of the speaker does not matter for First Amendment
purposes. And further that independent spending cannot corrupt. Some
anti-campaign finance regulation folks have claimed that /Citizens
United/ should be extended to allow unlimited /contributions/, from
whatever source, to candidates (and some even claim that it is
unconstitutional to require even disclosure of such contributions).
That's Justice Thomas's position
<http://www.firstamendmentcenter.org/analysis.aspx?id=18958> too.
So let's hear from these anti-regulatory folks. If this activity is
proven against the Pakistani agent, would prosecution of the agent be
unconstitutional under the First Amendment? (For my thoughts on the
foreign national question, see my recent /Michigan/ piece
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576>.)
UPDATE: Apparently the alleged agent is being charged with violating
FARA, not the campaign finance laws. But I think my same question
remains. Are limitations on this conduct a violation of the First
Amendment? If the agent were charged with campaign finance violations,
would he have a valid First Amendment defense?
Further UPDATE: Here is the DOJ press release
<http://www.justice.gov/opa/pr/2011/July/11-nsd-937.html>, confirming
that two people are charged with violating FARA by not registering as
foreign agents. The two, who are U.S. citizens, were not charged (at
least not from the indictment) with conspiring to violate the ban on
foreign contributions to candidates, though it seems that they could be
if these facts are proven.
And so my question remains: should these two (and the Pakistani
government or handlers) have a First Amendment defense, should they be
charged with violating the law banning foreign contributions and
spending in U.S. elections?
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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